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Above: Many of the accused in UP could not seek anticipatory bail and were taken into custody/Photo: UNI

Revoked during the Emergency, anticipatory bail has now been restored in Uttar Pradesh, facilitating accused to secure advance bail in non-bailable offences

By Atul Chandra in Lucknow

For nearly 43 years now, millions of people in Uttar Pradesh and the region that is now Uttarakhand had to live with a law that differed from what was applicable to the rest of the country. The law is related to anticipatory bail, routine in the rest of the country but for which there was no provision here.

Now, the Uttar Pradesh government has reintroduced anticipatory bail in the state after it was scrapped during the Emergency. On June 11, 2019, the state cabinet presided over by Chief Minister Yogi Adityanath cleared the proposal to amend Section 438 of the Criminal Procedure Code (CrPC) which allows lower courts to grant advance bail, something that comes as a major relief to hundreds, if not thousands, who had to approach the Supreme Court to avoid imminent arrest in criminal cases. Uttar Pradesh and Uttarakhand were the only two states where this law did not exist.

It was in 1976, when the Emergency imposed in the country by the Indira Gandhi government was on, that the relevant section of the CrPC was done away with in the state by the then Congress government led by Hemwati Nandan Bahuguna. Section 438 of the CrPC was deleted with regard to its application in the state and the assembly enacted Section 9 of the CrPC Uttar Pradesh (Amendment) Act, 1976, which made detention and arrest easy.

For the past few years, the Supreme Court had been pressing the state government to amend the law to provide for anticipatory bail. In 2008, the Supreme Court told the government to restore the provision by bringing in an ordinance. In 2009, the Law Commission of the state also recommended that the advance bail provision should be brought back. In 2010, the Mayawati government did amend the law but the president withheld his assent to the Bill on technical grounds.

With a view to considering the revival of the advance bail provision, the Adityanath government constituted a
five-member committee headed by the principal secretary, home, and comprising the special secretary (judicial), special secretary (legislative department), director-general of prosecution and additional director-general of police (crime). The committee recommended that the provisions of Section 438 should be revived with some modifications to allow anticipatory bail in the state.

Accordingly, the CrPC (Uttar Pradesh Amendment) Bill, 2018, was passed by the legislature in August 2018 and was sent to the centre for approval. The presidential assent to the CrPC (Uttar Pradesh Amendment) Bill, 2018, was given on June 1, 2019. After the June 11 cabinet meeting, principal secretary, home, Arvind Kumar, briefed journalists about the conditions which have been added to prevent misuse of anticipatory bail granted by a lower court.

The conditions would make it mandatory for an accused granted bail to appear before the investigating officer whenever summoned; and the accused won’t be allowed to leave the country without the court’s permission and can’t influence a witness or try tampering with proof/evidence in a case.

As per the gazette notification, Section 438 will be inserted in the CrPC, 1973, as amended in its application to Uttar Pradesh, after Section 437A. Section 438 provides directions for grant of bail to a person apprehending arrest and states, “where any person has reason to believe that he may be arrested for having committed a non-bailable offence, he can apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter-alia, the following factors:

  • The nature and gravity of accusation;
  • The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognisable offence;
  • The possibility of applicant to flee from justice;
  • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.”

The amended law lays down the following conditions for the court in case it decides to grant anticipatory bail:

  • That the applicant will make himself available for interrogation by a police officer as and when required;
  • That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
  • That the applicant shall not leave India without the previous permission of the Court.

The amendment also stipulates that while issuing an interim order, the court should give seven days to the public prosecutor and the superintendent of police for a “reasonable opportunity of being heard” before a final order is passed.

Like the law in West Bengal, another amendment passed by the Uttar Pradesh government is about the period in which the court must decide on an anticipatory bail application. This has been fixed at “within 30 days from the date it is moved”.

The advance bail option shall not be applicable to offences arising out of Unlawful Activities (Prevention) Act, 1967, the Narcotic Drugs and Psychotropic Substances Act, 1985, the Official Secrets Act, 1923, and the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, and also in cases where death sentences can be awarded. Principal Secretary Arvind Kumar said that anticipatory bail won’t be allowed in heinous cases and that the court will have to dispose of the bail application in 30 days.

In July last year, the UP government had informed the Supreme Court that it would reintroduce anticipatory bail. The Additional Advocate-General (AAG) of UP, Aishwarya Bhati, had told a bench of Justice SA Bobde and Justice LN Rao of the state government’s decision to bring back the law.

The assurance came on a PIL filed by advocate Sanjeev Bhatnagar, who contended that the anticipatory bail provision should be introduced in the state and also in Uttarakhand. He argued that Articles 14 and 15 of the Constitution provide the fundamental right of equality and no discrimination, whereas the Preamble to the Constitution prominently considers justice, equality and fraternity as its prime features. In this respect, the petitioner said, the absence of the anticipatory bail provision was “discriminatory”.

When, in 2008, the Supreme Court asked the state government to revive the provision through an ordinance, the Mayawati government had passed the Code of Criminal Procedure Uttar Pradesh (Amendment) Bill, 2010. The Bill was sent for President Pratibha Patil’s assent but she returned it in September 2011. In this Bill, it had been left to the court to impose conditions or riders for grant of bail.

In March 2018, the Supreme Court gave the UP government one last chance to decide on the amendment. When Bhati told the top court that the issue was being examined at the highest level, it said, “You are taking a lot of time.” The AAG then pleaded for one last opportunity.

Interestingly, the 1976 amendment withstood the legal challenge when it was upheld by a constitution bench of the apex court. The bench rejected the contention that the Act was unconstitutional and that the deletion of Section 438 in its application in UP violated constitutional provisions.

In Kartar Singh vs state of Punjab, the Supreme Court ruled, “The deletion of application of Section 438 in the State of Uttar Pradesh by Section 9 of the Code of Criminal Procedure (UP) Amendment 1976, does not offend Article 14 or Article 19 or Article 21 of the Constitution and the state legislature is competent to delete that section, which is one of the matters enumerated in the concurrent list (List III of the Seventh Schedule) and such deletion is valid under Article 254 (2) of the constitution.”

This judgment of the Supreme Court was cited by Justice Ravindra Singh and Justice Devendra Kumar Upadhyay of the Allahabad High Court on seeking a writ of mandamus directing the president of India to accord assent to the Code of Criminal Procedure Uttar Pradesh (Amendment) Bill, 2010. Dismissing the petition in their 2015 judgment, the judges said that “such prayer cannot be accepted as no such mandamus can be issued by this court in exercise of its jurisdiction under Article 226…”

In the statement of objects and reasons for reintroducing Section 438 of the CrPC, CM Adityanath said, “There is a continuous demand for its revival. Writ petitions have also been filed before the Hon’ble Courts. The state Law Commission has, in its third report in 2009, also recommended reviving the provisions of the said Section. The Bill was drafted and placed before the House after the committee’s recommendations.”

The reintroduction of anticipatory bail, apart from bringing relief to thousands of people, is also expected to contribute in some measure to easing the problem of overcrowded jails.

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